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Eyes on Trade is a blog by the staff of Public Citizen's Global Trade Watch (GTW) division. GTW aims to promote democracy by challenging corporate globalization, arguing that the current globalization model is neither a random inevitability nor "free trade." Eyes on Trade is a space for interested parties to share information about globalization and trade issues, and in particular for us to share our watchdogging insights with you! GTW director Lori Wallach's initial post explains it all.

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February 24, 2016

Debunking the Administration’s TPP = 18,000 Tax Cuts on U.S. Exports Talking Point

U.S. Sold Nothing in More than 10,600 of Those Categories...

Without compelling jobs or economic growth data to sell the Trans-Pacific Partnership (TPP), the Obama administration is trying to shift focus to an impressive-sounding number with its mantra about TPP delivering “18,000 tax cuts for Made in America exports.”

But that is just the raw number of tariff lines cut by the five TPP nations with which the United States does not already have free trade agreements. The United States only sold goods to those nations in less than 7,500 of the 18,000 categories.Indeed, the United States exports no goods to any nation under some of the touted 18,000 tariff lines.

The 18,000 figure is a misdirect. The relevant question is not the number of tariff cuts other countries listed but whether the TPP would lead to net U.S. job creation, higher wages, an improved trade balance and higher U.S. growth rates.

The United States exported nothing for more than half of the 18,000 categories to the five relevant nations – Japan, Malaysia, Vietnam, New Zealand and Brunei – in 2014, the last year for which annual data is available. U.S. exporters already have “tax cuts” for their goods under previous trade deals with the other six TPP nations, including Canada and Mexico – our second and third largest trade partners.

For the nearly 7,500 categories of goods out of the 18,000 for which we sold anything to the five nations without previous FTAs, almost 50 percent of the categories had sales under $500,000. And the TPP is not likely to transform that reality. Brunei (annual GDP $17.1 billion) is a tiny market. New Zealand (annual GDP $200 billion – smaller than San Diego) and Vietnam (annual GDP $186.2 billion – close to that of Denver) are not big markets. And, consumer demand is limited by Vietnam’s extremely low $2,052 per capita income. Malaysia’s per capital income is one fifth of that in the United States and its GDP is $338.1 billion, about the size of Atlanta. Japan is a huge market. But, with the exception of some agricultural goods, tariffs have not been the main barriers to U.S. exports to Japan. (GDP data from the World Bank)

Almost 2,000 of the tariff reductions in the categories of products the United States does sell won’t be realized for over a decade. This includes some of those, such as beef and pork to Japan, where tariff cuts could make a difference. But because the TPP does not have enforceable disciplines against currency manipulation, by the time these cuts finally go into effect they could effectively have been erased if Japan devalues the yen.

The administration’s “TPP Guide to 18,000 Tax Cuts” document bizarrelyhighlights goods TPP nations simply do not buy in volume from anyone. Consider the 34 percent “tax” cut by low-income Vietnam on Alaskan caviar. About $150,000 worth of caviar was imported by Vietnam from anywhere. Or Vietnam’s 5 percent tariff cut on skis. Vietnam only imported about $50,000 in skis in total.

Many of the tax cuts the administration has touted include those that the administration claims the TPP’s weak environmental chapter would conserve. Among the 18,000 tax cuts are Malaysia’s shark fin tariffs, Vietnam’s whale meat tariffs and Japan’s ivory tariffs.

Indeed, the “tax cut” list is packed with gems. Christmas ornaments and pork for Muslim nations Malaysia and Brunei. Silkworm cocoons for Vietnam and Japan. Ski boots for Brunei. Camels for Vietnam.

February 17, 2016

Remarks at the National Press Club Panel on the Proposed Inclusion of ISDS in the TPP

Delivered by Lise Johnson, Head: Investment Law and Policy, Columbia Center on Sustainable Investment, at the National Press Club in Washington DC on February 11, 2016

With the TPP, we are currently at a crucial crossroads. We either take this time to thoroughly evaluate ISDS and its costs and benefits, which, I believe, would take us in a new and more thoughtful direction, or we simply move forward with the TPP, entrenching and expanding a failed experiment in economic policy.

I refer to ISDS as an experiment because, although it is commonly noted that there are 3,000 investment treaties around the world and, therefore, that the ISDS mechanism is nothing new, the first investment treaty with ISDS was actually not concluded until the late 1960s. Investment treaties with ISDS were not widely negotiated until the 1990s, and ISDS claims only really emerged in earnest in the late 1990s and early 2000s. Thus, we really only have roughly 15 years of experience with this mechanism. ISDS is still a new area of law. An experiment.

I note that ISDS is a failed experiment because it does not appear to have achieved three of the commonly stated objectives of the mechanism. It has not led to increased investment flows, nor to a set of predictable international legal rights for investors, nor to an increase in the rule of law in host countries.

If the TPP were concluded with ISDS, we would not only be entrenching this failed experiment, but significantly expanding it. Currently, the US only has an investment treaty with one major capital exporting state, Canada, meaning that only a relatively small share of foreign direct investment in the US – roughly 10% -- is currently protected by a treaty with ISDS. With the TPP, the percentage of covered investment will more than double; and if we continue the trend in the TTIP as well, the amount of covered FDI in the US will rise significantly to approximately 70%, and along with it, the US’s exposure to costly litigation and liability.

Now, the US has said that the experiment has not cost the Government anything, frequently highlighting the point that it has yet to lose an ISDS case. But there are a few reasons why I don’t think we should count on the past to predict the future:

As I noted, the US’s exposure has been fairly limited; this will change with the TPP;

Second, in the cases the US has defended, the US has had near misses in which even the government officials working on the case thought the Government would lose; one explanation given for why arbitrators have been reluctant to rule against the US is that, if the US were to lose, it would back away from the system to the ultimate detriment of the arbitrators and counsel who make their living from ISDS cases. Thus, at least while the future of ISDS felt uncertain, it has been in the best interest of arbitrators to take it easy on the US.

Third, recent decisions reflect the significant delegation of authority under ISDS to arbitrators to interpret and apply the treaty, without any meaningful review or opportunity to appeal the arbitrators’ decisions. The tribunal in a recent case against the US, for example, stated that although all three NAFTA states unanimously agreed that the treaty meant “X”, it didn’t consider itself bound to that interpretation and proceeded to disregard it. This shows that there is no guarantee that tribunals will interpret treaty provisions in a way that is consistent with the US’s understanding of what treaty obligations mean.2

Fourth, the US has lost on key issues that have resulted in an expansion of exposure to future claims and damages.3

Moreover, irrespective of data on wins and losses, the system of ISDS itself is fundamentally flawed in that it creates a privileged and powerful system of protections for foreign investors that is inconsistent with, and erodes, the power of domestic law and institutions.

The USTR has defended ISDS against such charges by saying that the standards of protection investors receive under it mirror, but do not go beyond, the protections provided under domestic law and that therefore ISDS does not represent any change or threat to domestic law as we know it.4 But there are two key problems with the USTR’s assertion. One is that it is not correct that investment treaties do not provide foreign investors any greater rights than are provided under domestic law. We’ve done significant research comparing the protections provided under domestic law with those provided under investment treaties, and conclude that the protections provided under investment treaties in fact give foreign investors greater rights than they or anyone else have under domestic law.5 In fact, this seems to be why TransCanada, which is suing the US government as a result of the denial of the Keystone permit, is pursuing its major claim for $15 billion through the NAFTA as opposed to through domestic litigation.

But, even accepting the USTR’s argument that the substantive standards in investment treaties simply mirror substantive standards provided under US domestic law still does not address some of the significant concerns about ISDS. In this context, it is important to recall that ISDS allows investors to challenge actions of officials at any level of government – local, state, and federal, and conduct by any branch – executive, legislative and judicial. The fact that a measure is entirely consistent with domestic law is no defense or shield against liability.

What ISDS does is give private arbitrators the power to decide cases that, at their core, are merely questions of domestic constitutional and administrative law dressed up as treaty claims. Instead of recourse through local, state or federal domestic institutions, investors are able to take their claims to a panel of party-appointed international arbitrators and ask them to determine the bounds of proper administrative, legislative, and judicial conduct.

One might ask: what does it matter if we permit foreign investors to bring their claims against the government before international arbitrators as opposed to before domestic courts if the substantive standards of protection are the same? The answer is that it matters a great deal.

One, there is no route for a meaningful appeal. Even if a tribunal gets the law or facts wrong, its decision will likely stand;

Two, the decision makers in ISDS are free of the requirements of independence, impartiality, and high ethical standards that are mandatory for US judges;

Three, in domestic litigation, if a court issues a decision that is inconsistent with legislative intent, the legislature can pass a law correcting that decision; the legislature, however, has no power to undo or otherwise override an ISDS decision;

Four, the procedural rules and remedies are significantly different depending on whether an investor brings its claims through ISDS or through domestic courts, with meaningful impacts on the government’s potential exposure to claims and liability; and

Five, even if the law looks the similar, it is not the same. So, for example, although the TPP incorporates what superficially looks like the US’s test on regulatory expropriations, tribunals are not in any way bound to apply that test in the same manner as US courts.

Fundamentally, supranational adjudication—where the decisions of a supranational body can penetrate deep into a domestic society—is rare and raises a host of complex legal and policy questions. Much more consideration of these issues is important before we inadvertently dilute constitutional protections, weaken the judicial branch, and outsource our domestic legal system to a system of private arbitration that is isolated from essential checks and balances. This is not to say that supranational adjudication has no place in the American legal system, but rather that ISDS is an extreme, discriminatory and unnecessary version that will have undue negative effects on our domestic law and institutions.

Data from the Bureau of Economic Analysis.

See Lise Johnson, “New Weaknesses: Despite a major win, arbitration decisions in 2014 increase the US’s future exposure to litigation and liability,” (CCSI 2015), at p. 8, available at http://ccsi.columbia.edu/files/2013/12/9.-Johnson-New-Weaknesses-US-roundup.pdf

See cases discussed Id.

USTR, Fact Sheet: “Investor-State Dispute Settlement (ISDS),” (March 2015), https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2015/march/investorstate-dispute-settlement-isds (“These investment rules mirror rights and protections in the United States and are designed to provide no greater substantive rights to foreign investors than are afforded under the Constitution and U.S. law”).

See, e.g., Johnson and Volkov, “Investor-State Contracts, Host-State ‘Commitments,’ and the Myth of Stability in International Law,” 24 American Review of International Arbitration 361 (2013); Lise Johnson, Lisa Sachs, and Jeffrey Sachs, “Investor-State Dispute Settlement, Public Interest, and U.S. Domestic Law,” (May 2015), available at http://ccsi.columbia.edu/files/2015/05/Investor-State-Dispute-Settlement-PublicInterest-and-U.S.-Domestic-Law-FINAL-May-19-8.pdf

February 04, 2016

On World Cancer Day, Cancer Patients Arrested at PhRMA Headquarters to Warn of ‘Death Sentence’ Imposed by Trans-Pacific Partnership Expansion of Medicine Monopolies

WASHINGTON, D.C. – On World Cancer Day, two cancer patients – supported by health professionals and public health advocates – were arrested as they engaged in civil disobedience to dramatize their life-and-death concerns about the expansion of medicine monopolies pushed by brand-name pharmaceutical companies in the Trans-Pacific Partnership (TPP).

Zahara Heckscher, a 51-year old mother and author from Washington, D.C., who has been in treatment for aggressive breast cancer for seven years, and Hannah Lyon, a 29-year old from California who is in treatment for aggressive cervical cancer, linked arms and refused to leave the lobby of the office building that houses PhRMA, the trade association that has pushed for extreme monopolies in the TPP, while dozens of supporters chanted outside.

They loudly shouted that the TPP would be a “death sentence” for many cancer patients by keeping life-saving cancer medicines out of reach due to exorbitant monopoly pricing. They shouted until they were arrested by the D.C. police and charged with unlawful entry.

“The TPP will effectively take some patients backwards in time to the dark ages of cancer treatment. It will prevent too many people with cancer – and other life threatening illnesses – from accessing the new treatments they need to stay alive,” said Heckscher, explaining why she felt compelled to risk arrest protesting the TPP at PhRMA today. “One of my current medicines would cost me $118,000 per year if I were not in a clinical trial. PhRMA pushed for provisions in the TPP that, if passed, would lock in policies in the U.S. that keep medicine prices obscenely high.”

Lyon echoed Heckscher’s concerns. “I have never spoken in public or engaged in civil disobedience before, but I know at a deeply personal level the life and death stakes for many cancer patients if the TPP is approved,” she said. “Cancer patients do not have the luxury to wait five or eight years for access to affordable medicines while PhRMA establishes extended monopolies to continue to reap outrageous profits. I want Congress to pay attention to the concerns of patients who need affordable medicine instead of catering to PhRMA lobbyists, and reject the TPP.”

Before risking arrest, Heckscher and Lyon were joined in a news conference and demonstration at PhRMA headquarters by other cancer patients, survivors, health professionals and public health advocates, wearing scrubs and surgical masks and holding signs that read “On World Cancer Day, Cancer Patients Say No TPP Death Sentence” and “Shame on PhRMA! No TPP Death Sentence.” Advocates held oversized pill bottles with giant price tags and chanted.

Robert Weissman, president of Public Citizen, put the struggle against the TPP ‘death sentence’ in a broader context: “Pharmaceutical industry greed has reached heights never seen before. The price of medicines has nothing to do with the cost of making them – and virtually nothing to do with the cost of research and development. Big Pharma companies are price gouging simply because they can. Drug prices are so high because there’s no competition, and because Big Pharma spent more than $1.2 billion on lobbying over the past five years and it employs an army of more than 1,400 registered lobbyists to keep it that way. As part of a comprehensive strategy to reform our broken system, we must fight Big Pharma’s scheme to win still more expanded monopoly protections through the TPP – an effort not just to impose high prices on other countries, but to block our reform agenda and maintain super-high prices in the United States indefinitely.”

Alison Case, a physician with the American Medical Student Association, gave a prospective from health professionals: “The TPP sets a dangerous precedent for our future patients by threatening access to medicines and public health. The provisions on intellectual property, including provisions regarding life-saving biologics used to treat cancer, were designed with heavy industry input in a completely non-transparent way,” she said. “This will only further an environment of high drug costs and frustratingly difficult struggles for patients who need them.”

Hilary McQuie, director of U.S. government policy at HealthGap, noted that the TPP provisions could delay efforts to end the AIDS epidemic. “We now have over 15 million people worldwide getting HIV treatment, and if we keep increasing resources to test and treat at this rate, we will end the AIDS epidemic by 2030. The only way this has been possible was through hard-won struggles to allow for massive generic imports by low and middle income countries. If in place a decade ago, the TPP’s provisions would have prevented member countries the ability to develop the very HIV treatment programs that millions are dependent on today.”

February 03, 2016

On TPP Signing Day, Activists Urge Congress to ‘Let It Go’; Frozen Themed Performance Kicks Off 48 Hours of Anti-TPP Protests Around the World

Fair Trade Princess Ilsa Performs Her Rendition of ‘TPP: Let It Go’ Accompanied by a Cast of Dozens of Frosty Friends

WASHINGTON, D.C. – As representatives of Trans-Pacific Partnership (TPP) countries gather in New Zealand to officially sign the controversial agreement, activists today at the National Press Club delivered a clear message to Congress: “Let It Go.”

In a Broadway-style performance of a parody version of the Frozen anthem, Fair Trade Princess Ilsa kicked off 48 hours of national and international anti-TPP demonstrations with her rendition of “TPP: Let It Go.” Today’s event will kick off a very chilly year for the TPP in Congress, where the pact’s fate is at best uncertain. All U.S. presidential candidates with more than 5 percent support in any state oppose the deal, and vibrant TPP opposition movements are growing across the country and around the world.

The TPP parody song spotlights the secrecy of TPP negotiations and the role of the 500 official U.S. trade advisers mainly representing corporate interests. Fair Trade Princess Ilsa sang about how the TPP would make it easier to offshore more American jobs and increase inequality with Americans who would be put into more direct competition with workers in Vietnam who make 65 cents an hour:

“The TPP is all about greedCorporations wrote the rulesOffshore jobs, lower wagesand democracy overruled”

Fair Trade Princess Ilsa, a proponent of access to affordable medicines for patients across the globe, took PhRMA to task:

“TPP would raise the price of meds keeping the sick dying in their beds”

Today’s “TPP: Let It Go” performance marks the beginning of protests and anti-TPP demonstrations in 30 cities across the United States and in TPP signatory countries, including a major march protesting the TPP signing ceremony in Auckland, New Zealand. With respect to the strength of the anti-TPP movement, Fair Trade Princess Ilsa sang:

“Our power’s growing, the opposition is so strong From climate to human rights, the TPP is wrong We won’t stand by and let the corporations win The TPP will end up in history’s trash bin”

Before Fair Trade Princess Ilsa concluded her brief appearance at the National Press Club, after being rained out of her original performance venue in front of the White House, she had one clear message for Congress:

“Let it go! Let it go! Our movement is gonna soar Let it go! Let it go! ‘Til the TPP is no more

Here we stand and to Congress we say: on TPP, vote no… … or you better watch out on Election Day!”